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O’Neill’s illegal logging: 459 days and counting…

September 26, 2014 Leave a comment

459

Peter O'Neill: Theft of forest resources: Guilty

billboard poster - give land back to landowners

 

O’Neill’s illegal logging: 455 days and counting…

September 22, 2014 Leave a comment

455

It is now 455 days since Prime Minister Peter O’Neill was told that the SABL leases were unlawful and should be revoked.

It was on June 24, 2013 that he was given the reports of the SABL Commission Inquiry which detail the widespread fraud and mismanagement used by foreign logging companies to gain illegal access to over 5 million hectares of land.

O’Neill has promised to cancel the leases and stop the illegal logging several times.

In September 2013 O’Neill told Parliament:

“We will no longer watch on as foreign owned companies come in and con our landowners, chop down our forests and then take the proceeds offshore”

But, despite an NEC decision in June we are still waiting for the leases to be cancelled and the logging stopped.

For 455 days O’Neill has failed to revoke the SABL leases and has been complicit in the illegal logging of our forests by foreign logging companies.

Prime Minister Peter O’Neill has aided and abetted the theft of logs worth hundreds of million of kina and the destruction of thousands of hectares of pristine forest.

Peter O'Neill: Theft of forest resources: Guilty

Logging in Pomio: Violence, Wages, Land and the Environment

September 22, 2014 3 comments

The arrival of Malaysian logging personnel in the Pomio area has been accompanied by increased disputes over land, poor working conditions, growing insecurity and violence, the destruction of sacred sites, the confiscation of villagers’ private property, environmental damage and an exacerbation of the crisis of legitimacy involving the modern PNG state.

logging and oil palm plantings in Pomio

By Professor Andrew Lattas, University of Bergen

Local villagers complain that government no longer represents their interests. This accusation is made against government at all levels: district, provincial and national. The democratic state is seen as not functioning to incorporate and protect people’s interests, but only those of the developer. Senior government personnel in key departments are accused of having too close a relationship with the Malaysian logging company operating in Pomio. Government officials can be frequently seen socialising and eating at the mess at the logging company’s headquarters at Drina. Some officials are there almost on a daily basis and they are seen sometimes carting away goods in government and company cars. This leads to much speculation by villagers, logging company workers and other government officials. This speculation focuses on the fact that this hospitality is not extended to all government employees but to select officials working in the key departments of forestry and lands; and senior officers at the local district office at Palmalmal, such as the Special Projects Officer and the District Administrator. The latter two officials were appointed under the influence of the previous member for Pomio, Paul Tiensten, who has recently been convicted and jailed for corruption involving tens of millions of kina. Other district workers at Palmalmal told me how they struggled to make ends meet on their low government salaries, but they did not see the select officials favoured by the Malaysian company as having the same money problems. They suspected these officials of receiving what they called a “second wage”, a euphemism for hidden payments rendered for hidden services.

Given that the district administrator, his deputy, the special projects officer, and the officers belonging to forestry and land socialise regularly with Chinese Malaysian management, it is no surprise that villagers see government as compromised. Villagers do not regard state officials as impartial and many believe there is no point in taking to them any complaint over land boundaries, the price of store goods, wages and conditions, safety, environment, or the destruction of private gardens and cash crops. This is why some villagers have resorted to road blocks in defence of their property but this only invokes a response by the riot squad and the private security employed by the logging company.

The Company Store: Low Wages, Credit Purchases and High Prices

I received many complaints from workers over their low wages. Workers complained that they did not receive any itemised pay sheets that might indicate how their pay has been calculated for that fortnight, e.g. how many hours they were booked as working and how much they were paid for each hour. Many workers just receive an envelope with money in it and without any accompanying calculations.

In particular, many workers complain that they never receive any itemised list of what they have supposedly purchased on credit from the logging company’s store and how this corresponds to the amount deducted from their fortnightly wage. Many workers claim that they have not purchased the quantity of goods that has been deducted and others tell of how during some fortnights when they have deliberately sought to avoid making purchases, they still incurred deductions from their pay. Workers have no way of getting redress for they do not receive any itemised record of their purchases that they could dispute or corroborate.

Some workers complain that they are urged by their Malaysian supervisors to purchase goods on credit from the company store when they are trying not to do so, for they need to save and spend their wages elsewhere, e.g. on school fees.

The price of subsistence goods (especially rice, tinned fish, oil, flour and biscuits) at the company store is much higher (about 25%) than the price of goods in local village stores. This is despite the fact that village trade-stores do not have the same easy access to urban wholesale stores in Kokopo, Lae and Port Moresby. This means that workers for the Malaysian logging company find it hard to survive on their low wages and many are forced to steal local garden produce so as to supplement their diet, both in terms of variety and calorie intake. Many Pomio villagers speak of increased thefts of food from their gardens by logging workers, who do not have local kin to provide vegetables.

The price of boat fuel is another source of complaint, whilst it is possible to buy fuel in villages for 18-22 kina, at the Malaysian camp it is sold for 25 kina.

Destruction of Private Cash Crops and Subsistence Gardens

Logging, road construction and the planting of oil palms has destroyed many private gardens and cash crops belonging to villagers who never agreed to have logging in their area and most certainly do not want to give up their land for an oil palm plantation. Until very recently, in coastal areas, the government has been encouraging copra and cocoa as cash crops, but these are now deemed superfluous even though villagers spent many decades clearing bush and then planting and harvesting these trees. The trees have been bulldozed to make way for roads and oil palms without the owners being compensated for their lost trees, land, expenses, income and work.

Ironically, the Malaysian logging company has used traditional concepts of clan ownership to seize and destroy private cash crops and gardens. The company has sought to gazump the rights of individual owners by using the supposed higher power of clan signatures collected by government officials. The fact that these government officers never went to the actual villages to collect these clan signatures and many of the signatures are fraudulent does not stop the riot squad and the lands and forestry officials from supporting this destruction and confiscation of people’s private land, gardens and cash crops using those same problematic signatures.

It is not just the customary rights of people which have been fundamentally compromised, but also their modern property rights. Once cash crops are planted on customary clan land, then the land and the trees becomes the private property of individuals that can be passed on to their children. It does not revert back to becoming customary clan land as is the case with slash and burn gardens. It is these modern property interests which are not being respected by this new form of development that uses forged clan signatures to trump and appropriate private property rights.

Land Registration as Land Theft

This dreadful experience with government attempts to collect clan signatures supporting logging is why there is currently widespread opposition by Pomio villagers to the land registration process. Many regard land registration as a vehicle by which RH and the land department can empower certain select individuals at the expense of others so as to provide developers with access and control over the land and its resources. Lip service is paid to the protection of traditional land rights through a bureaucratic process that in effect transfers clan rights to select individuals who are not clan leaders but are supported by the developer who has too close a connection with forestry and land officials.

A Crisis of State Legitimacy

The riot squad which has been brought in by the Malaysian company does not seek to correct these grievances by putting a stop to the seizure of private land and the destruction of property. Instead, the riot squad police support the Malaysian logging company by using their guns and the threat of arrest to intimidate villagers who set up road-blocks to prevent bulldozers, trucks and chainsaws from entering their land. The district office and the local council also refuse to help protect people’s property. All of this is producing a crisis of legitimacy for the modern state whose officials are seen as compromised and partisan. State officials are not seen as abiding by the logic of a democratic state where state officials should impartially assess and serve the interests of the people. Instead, these officials are accused of just working to protect the profits, private property, rights and reputation of the Malaysian logging company whilst that of Melanesian villagers is confiscated, destroyed and severely curtailed.

Divide and Rule

Many of those who have signed the documents to allow logging in coastal areas do not reside there. Instead they reside further in the interior, in bush villages that have an interest in logging and roads. It is true that these bush villagers do have relatives living along the coast and have customary rights to access coastal lands and their resources, but this is not the same as those bush villagers being the major clan leaders of those more coastal terrains. The interior villages see logging as a practical way of providing roads into the mountainous interior given that the government has been unable to fund and build those roads. Bush villagers are not affected by the oil palm plantations that are being established in the flatter, fertile and gently sloping hills close to the coast. Ironically, many of these interior villagers who support logging do not want oil palm plantations and certainly not in their home terrains. Nevertheless these same bush villages have at times raided and assaulted coastal villagers who seek to stop logging operations. In doing so, these bush villagers have been led by the directors of the local landowner company, which is largely funded by the Malaysian logging Company. Some of these directors live in the interior villagers and like the other landowner company directors they receive money from the Malaysian logging company, which allows them to visit town. There they stay in expensive hotels, eat and drink at restaurants and bars, and hire local prostitutes.

Private Security, Violence and Terror

The logging company also pays for the travel expenses of riot squad police. Indeed the Malaysian company houses, feeds and gives a monetary bonus to these police for their time in the logging camps in Pomio. Supplementing the violence and intimidation provided by the riot squad, the logging company has also recruited a large army of private security staff from villages in the interior who support logging. Ostensibly hired to protect company machinery at night from sabotage, this security staff is used in the daytime to protect the bulldozers, trucks, drivers and chain saw operators as these are pushed into new logging areas that are disputed and that coastal villagers do not want clear-felled and planted with oil palms.

The Mamusi bush villagers who have been hired as security guards have a reputation for traditional warfare and they very much cultivate the respect and fear this renown brings. This reputation was recently confirmed when some bush villagers raided the homes of coastal villagers and physically assaulted those who had opposed logging. These individuals were selected and were warned of further violence and even death unless they stopped their public opposition to logging. One major violent attack by bush Mamusi villagers happened at the logging camp at Drina where the riot police are based.

Corporatising Sorcery

The use of violence to intimidate logging opponents also extends to death threats involving sorcery. Whilst western educated individuals might not believe in sorcery, for Pomio villagers it is real. It is seen as evidenced in the unexplained deaths of friends, children, spouses and other relatives. One major form of sorcery used by bush Mamusi villagers to intimidate coastal villages involves the use of an invisible spear. A real spear will supposedly be dipped into a magical mixture and then it will be held, pointed and thrown in the direction of the intended victim. The real spear never leaves the sorcerer’s hand but an invisible spear travels to strike down the victim. When coastal villagers were physically assaulted by villagers in the interior, they were warned that the real spear had already been dipped in its magical solution and they should await the travel of the invisible spear. On many occasions, logging opponents have been threatened by the directors of the local landowner company and other supporters of logging with the gesture of them throwing an invisible spear at logging opponents. Indeed, logging opponents are openly told to eat their last pig and chicken, for they will soon be dead.

The expansion of logging into new areas has required not just the presence and violence of the riot squad and a private army of security personnel. It has also required a redeployment of the intimidating powers of sorcery; these have been corporatised.

Sexual Harassment, Pornography, and Marriages of Convenience

Women who come to the camps from villages to purchase goods and/or to see relatives are sometimes sexually accosted by Malaysian Chinese employees who will touch the breasts of these visiting women and proposition them by offering money for sex. The women in the logging camps who suffer the most sexual harassment are local women employed to work in less public and visible spaces that require the preparation of food and the cleaning of private rooms.

Sham marriages are often undertaken by Malaysian Chinese management personnel as a cover for permanent sexual relations with local women. These marriages do not involve a church minister and they do not involve a civil registration of the marriage. Instead, the customary notion of marriage through gifts to kin is used to legitimise a temporary union that does not involve any permanent obligation by the Malaysian Chinese to the children of that “marriage”. When these Malaysian Chinese employees leave PNG or are transferred to other logging camps, they do not take responsibility for the upkeep of these children by helping to pay for school fees, clothing, housing or food. Instead, all of these expenses are shifted and borne by local kin.

The sale of pornographic photos and videos especially for use on mobile phones has become another cause of concern at the logging camps. Local village leaders complain that these are being sold to workers and villagers by Chinese Malaysian staff.

Housing and Racial Hierarchy

Interactions in the camp are organised around a racial hierarchy and this is reflected and reinforced by the spatial layout of the camps. The Chinese management live in more luxurious quarters at the top of the hill. This compound is fenced off with high wire; it has painted buildings that are air conditioned and have satellite-TV reception. The housing of the Iban workers from Sarawak is situated closer to the coast and the loading wharves, where there is more noise and more mosquitoes. Their accommodation consists of partitioned rooms in long houses that are unpainted and unfenced. The buildings are made of timber planks and are slightly better in quality than the mostly thin plywood housing of Melanesian workers. The latter’s long houses have uninsulated corrugated iron roofs which make the buildings very hot in the day time. The thin plywood that separates the small rooms and living quarters of individuals and families offers no privacy, especially for married couples. The washing and cooking facilities are basic and inadequate.

The accommodation of Chinese management is at the top of the hill and luxurious by comparison

The accommodation of Chinese management is at the top of the hill and luxurious by comparison

Destruction of Sacred Sites

The rapid expansion of logging along the coast has destroyed many sacred ancestral sites, which have been bulldozed to make way for roads, logging and oil palms. The public relations officers employed by the logging company and the directors of the landowner company, though they are local villagers, are seen as too close to the logging company to act as impartial mediators. These individuals eat in the company mess and like local government officials they are regarded as compromised by the wages and gifts they received from Chinese Malaysian management. This perception is supported when directors and public relations officers spend all their time seeking to placate angry villagers, and refuse to intervene to help villagers to protect well-known sacred sites by diverting roads, logging and oil palm. These sacred sites in Pomio are regarded as where the world began and also where it will end, so many are worried by the destruction of these sites.

Safety and the Environment

Villagers in the area where the bush has been clear felled are worried by the chemicals used to spray around young oil palm trees to prevent the growth of weeds. When it rains those chemicals flow into the run off that flows into the nearby streams and rivers from which people collect water for drinking and cooking, and where they bathe.

Workers who spray the chemicals do so without any protective clothing. They are not provided with boots, overalls, gloves and a mask. Instead the men work wearing shorts and a shirt, and the women wear a laplap and meri-blouse. Both men and women work either barefoot or wearing just rubber thongs on their feet. The workers speak of how the wind will suddenly change and the chemical spray will then be blown onto their clothing, skin and hair, into their faces, and they will inhale the chemicals. In the morning the wet chemicals sprayed onto the tall grass coats workers’ legs, arms and clothing. When they go home, these workers do not shower or change their clothes. They speak of their fears as their young children come into close contact with their chemically soaked bodies and of wives who prepare and cook food after working with these chemical sprays.

Worker spraying herbicide in shorts and thongs, no boots, gloves, mask or overalls is provided. The wind blows the chemical spray onto the worker's body and clothing, endangering also his children and family when he returns to the village

Worker spraying herbicide in shorts, no boots, gloves, mask or overalls is provided. The wind blows the chemical spray onto the worker’s body and clothing, endangering also his children and family when he returns to the village

In the past, the villagers along the coast who live around Mauna, Lau, Bairaman and Mu have been strong supporters of development. They have their own walk-about saw mills and extensive cash crops, initially copra but now cocoa. Over the last few decades, many have developed their own land use plans with the lands department, but these development plans are now said by the lands department to be irrelevant. The opponents to clear-felling and oil palm are not backward cargo cult villagers as is often claimed by the riot squad and local landowner directors, who like to perpetuate this false caricature in the mass media of regressive, irrational villagers seeking to block progress. This is a very prejudiced portrayal of the Pomio Kivung movement, which operates as a local Melanesian church that established moral order in villages and calls for the proper development of resources rather than their theft. However, today, the strong opponents to clear-felling and oil palm (those who set up the road blocks and are arrested) are increasingly the more prosperous and developed coastal villagers. These more educated villagers oppose the transfers their land to a foreign developer for 99 years and virtually for free (only a token payment). They oppose the transformation of villagers into landless labourers; and they oppose the destruction of their moral communities and the movement of villagers into compounds where drunkenness and violence are common problems. Villagers would much rather work for themselves with their own walk-about saw mills, selective forms of logging, and cash crops rather than become low paid workers living on an inadequate diet, with poor housing and dangerous safety conditions that poison the environment. Villager’s own self-built houses are of much better quality than the skimpy housing, cooking and washing facilities offered by the foreign company. This new development is opposed because it is not improving local people’s living standards but is impoverishing them, stealing away their valuable asset – land and a productive healthy environment.

O’Neill’s illegal logging: 445 days and counting…

September 12, 2014 Leave a comment

445 days

Peter O'Neill: Theft of forest resources: Guilty

Court reveals woeful and unlawful lack of consultation and consent in SABL process

September 11, 2014 Leave a comment

National Court finds the SABL granted over the customary land known as Potion 144C East Sepik Province was granted in breach of the Constitution and mandatory statutory requirements 

The landowners of Turubu in East Sepik were unlawfully deprived of their land when a Special Agriculture and Business Lease was granted to Sepik Oil Palm Plantation. The landowners were not consulted and never consented to the use of their land for logging and oil palm. The extensive clear-felling of their forest sanctioned by the National Forest Board was illegal.

The landowners are now confronted with the task of seeking millions of kina of compensation from the State for the unlawful environmental damage done to their land and the extensive loss of forests.

In a landmark decision [see below] the National Court has exposed the woeful lack of consultation that has taken place with communities across PNG before their land has been locked away in 99-year leases and the abuse of process by the Department of Lands.

Justice Gavara-Nanu highlights the importance of Papua New Guinea ways when consultations take place with local communities and the significance of the Constitution and National Goals in defining how consultation should be done in PNG:

There was no awareness conducted by the representatives of the State, more particularly the officers from the Department of Lands and Physical Planning and the East Sepik Provincial Government with the landowners to sufficiently inform and educate them of the intentions of the Government regarding SABLs and the effect the SABL would have on them and their land.

I am also not satisfied that the meeting held at Turumu Primary School on 25 July, 2008, met the requirements of meaningful consultation with the landowners. The first thing to note is that, the meeting lasted for only 50 minutes. That very clearly was insufficient time to gauge the landowners’ views on SABL. Furthermore, only 18 people spoke in the meeting. That meeting was the only one held. There is no evidence of similar meetings being held.

For the landowners to be sufficiently informed of the new Government policies such as introduction of SABLs which would adversely affect their traditional lifestyle; more in-depth awareness meetings should have been conducted. This could have been achieved by Government officers travelling to the SABL areas and talking to the landowners in their villages. This exercise should have been done over a period of time, say six or twelve months or even more so that the people were made aware of and understood what SABL is about, its benefits, advantages and disadvantages and so on. To me, this is the true Papua New Guinea way of consulting with people in the villages, especially where new projects are introduced in their areas and especially where SABLs would attract other projects, such as the introduction of oil palm plantations in the SABL areas. In introducing projects such as this which would have permanent and long term effect on their land, genuine and meaningful consultation with the landowners must be carried out among the landowners. This is emphasized by the Constitution in the Directive Principles under the fifth goal, which provides for promoting and protecting Papua New Guinean ways.

The meeting at Turumu Primary School was not a meeting in the Papua New Guinean way. Papua New Guinean way of meeting and consultation with landowners as I discussed above and as provided by the Constitution was required because the SABL and the related activities or projects were going to interfere with and affect their traditional lifestyle, their customary rights to land, rivers, the sea and forests. The SABL was granted to the fifth defendant for 99 years, that is how long the landowners would be denied from the use and enjoyment of their land. So the generations of landowners would be affected. This is why the defendants needed to go to the villages in SABL areas and talk to the landowners, in their families clans and tribes, in the languages they could understand. If they did understand English, Pidgin or Motu, then use interpreters to interpret things in their own languages. This to me is the Papua New Guinean way of consultation and making awareness to the landowners as envisaged by s. 5 of the Constitution. By doing things this way, people and their cultures will be recognized, acknowledged and respected.

The meeting at Turumu Primary School fell far short of the type of consultation I am referring to, viz; the type of consultation that is envisaged by s. 5 of the Constitution and ss. 10 (2), (3) and (4) and 102 (2) of the Land Act.

Even if the meeting at Turumu Primary School constituted a form of consultation, it was still not enough to gauge the views of the landowners

__________

Maniwa v Malijiwi [2014] PGNC 25; N5687 (4 July 2014)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS JR No. 983 OF 2011

BETWEEN:

LEO MANIWA for himself and on behalf of Kowiru village
First Plaintiff

AND:

OTHERS AS PER ATTACHED SCHEDULE
Second Plaintiff

AND:

ARON MALIJIWI in his capacity as Director of Limawo Holdings Ltd & Director of Sepik Oil Palm Plantation Ltd.
First Defendant

AND:

HUI TECK LAU in his capacity as Director of Wewak Agriculture Development Ltd & Director of Sepik Oil Palm Plantation Ltd.
Second Defendant

AND:

LIMAWO HOLDINGS LTD
Third Defendant

AND:
WEWAK AGRICULTURE DEVELOPMENT LIMITED
Fourth Defendant

AND:

SEPIK OIL PALM PLANTATION LIMITED
Fifth Defendant

AND:

HONOURABLE PUKA TEMU – in his capacity as Minister of Lands & Physical Planning
Sixth Defendant

AND:

PEPI KIMAS in his capacity as Secretary, Department of
Lands & Physical Planning
Seventh Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Eighth Defendant

Waigani: Gavara-Nanu J.
2013: 20 Nov & 11 December
2014: 4 July

PRACTICE & PROCEDURE – Land Law – Special Agricultural & Business Lease – Land Act, 1996; ss. 10, 11 and 102 – Land Groups Incorporation Act 1974, ss. 5 (2) (c), (6) and 33 (1) – Constitution; ss. 5 and 53 – Meaning of meaningful consultation with landowners discussed.

Cases cited

Doriga Mahuru & Ors v. Hon. Lucas Dekenai & Ors (2013) N5305
Musa Valley Management Company Limited & Musa Century Limited v. Pepi 
Kimas & Ors (2010) N3827

Counsel

H. Walley, for the First & Second Plaintiffs 
T. Boboro, for the First to Fifth Defendants

4th July, 2014

1. GAVARA-NANU J.: The plaintiffs seek review of the decision of the Minister for Lands and Physical Planning, Hon. Puka Temu, made on 2 September, 2008, to grant a Special Agricultural and Business Lease (SABL) over their customary land described as Portion 144 C, East Sepik Province, to Sepik Oil Palm Plantation Limited, the fifth defendant, which is the developer.

2. The plaintiffs seek an order in the nature of certiorari to quash the decision and to restore the land to them. This is the principal relief sought. The other relief are consequential which are sought by way of declarations. These relief relate to environmental damage, validity of agreements for the developer to clear forests, to harvest logs and to plant oil palm on the land.

4. The plaintiffs submitted that their land was acquired by the State which converted it into SABL without their consent. They submitted that a purported consent for their land to be converted to SABL was given fraudulently by a small and selected group of people who had vested interests. They further argued that even if the consent was given by the people who may have had authority to give consent, the landowners were not consulted, as such the consent was fraudulently given and was in breach of mandatory statutory requirements under the Land Act 1996, Land Groups Incorporation Act 1974, Forest Act 1991 and the Constitution.

5. The plaintiffs argued that the SABL was granted specifically in breach of ss. 10, 11 and 102 of the Land Act, ss. 7 (1) and 8 of the Environment Act, 2000, s. 90B of the Forest Act, ss. 5 (2) (c), 6 and 33 (1) and (2) of the Land Groups Incorporation Act 1974 and s. 53 of the Constitution.

6. The plaintiffs submitted that there was no awareness conducted by the defendants nor was there any meaningful consultation with the landowners before their land was acquired by the State for the SABL.

7. The defendants submitted that the SABL was properly and lawfully issued to the fifth defendant, they argued that the consent of the landowners was obtained before the SABL was issued. They said all the relevant requirements for the grant of SABL were complied with. In support of these arguments the defendants also adduced the Minutes of a public meeting held at Turumu Primary School, East Sepik Province on 25 July, 2008. That meeting was attended by individuals and representatives of 56 Incorporated Land Groups (ILGS). The affidavit of Michael Sino, the Acting Deputy Provincial Administrator for East Sepik sworn on 5 November, 2012, deposes that the meeting was conducted to gauge the views of the landowners about the Oil Palm project in their land and the SABL. Michael Sino chaired that meeting. He deposes that the meeting was widely publicized and even people from outside of the SABL area attended. He says the plaintiffs did not raise any objections to the SABL being granted and the oil palm project.

8. Aron Malijiwi, the first defendant and the Chairman of Limawo Holdings Ltd, which is the landowner company and a joint venture company with Wewak Agriculture Development Ltd, confirms in his affidavit that a public meeting was held at the Turumu Primary School on 25 July, 2012. Joseph Then who is the Executive Director of Sepik Oil Palm Plantation Limited and General Manager of Wewak Agricultural Development Limited also swore an affidavit on 5 November, 2012, in support of the evidence of Aron Malijiwi.

9. Sepik Oil Palm Plantation Ltd has two shareholders, Limawo Holdings Ltd, which holds 2,000 shares and Wewak Agricultural Development Ltd, the fourth defendant, which holds 8,000 shares. The Directors of Sepik Oil Palm Plantation Ltd are Hui Teck Lau also known as Sumitro Lau, the second defendant, Nyi Then also known as Joseph Then and Aron Malijiwi.

10. Wewak Agriculture Development Ltd has one shareholder, viz, Wewak Agricultural Development Ltd, which holds 10,000 shares.

11. The Directors of Wewak Agricultural Development Ltd are Hui Tech Lau or Sumitro Lau, Chiong Ming Ting and Ngi Then or Joseph Then. The Wewak Agricultural Development Ltd is an investment company, it also looks after the finances of the developer, Sepik Oil Palm Plantation Ltd in partnership, with the landowner company Limawo Holdings Ltd.

12. Limawo Holdings Ltd has 47 individual shareholders and 55 ILGs all holding 1,000 shares each.

13. The plaintiffs argued that acquisition of their land in the manner it was acquired by the State to convert it into a SABL for 99 years was also unconstitutional as it breached s. 53 of theConstitution. They argued that they have been unfairly deprived of the use, benefit and enjoyment of their land.

14. The plaintiffs submitted that when their land was acquired for SABL, the acquisition breached the requirements under ss. 9, 10, 11, 12 and 102 of the Land Act 1996. They argued that the purported consent given by the Directors of Limawo Holdings Ltd was not authorized by the landowners. They argued that most, if not all the landowners were not aware of that consent.

15. The plaintiffs have argued that ss 5 (2) (c), 6 and 33 (1) and (2) of the Land Groups Incorporation Act 1974 and ss. 37A of the Survey Act, Chapter 95 were also breached by the defendants. In regard to the breaches under the Land Groups Incorporation Act, 1974, the plaintiffs claimed that there were no applications for recognition by Land Groups with list of their members by the Registrar of Incorporated Land Groups. As to the breaches of the Survey Act, the plaintiffs submitted that there was no survey information collected on the land by the land offices and no surveys were done on the land. In regard to the breaches of the Land Act, the plaintiffs argued among other things that the Instrument of lease was not issued on an approved form. The plaintiffs argued that other requirements for land acquisition of customary land under ss. 9, 10 and 11 of the Land Act, were either not complied with at all or were not fully complied with by the Minister for Lands before the SABL was issued to the fifth defendant.

16. The defendants have raised issues regarding the authority of the principal plaintiffs to bring this application on behalf of other landowners. After carefully perusing and considering the materials before the Court I am satisfied that the principal plaintiffs have the authority of the landowners to bring this application to Court. There is overwhelming evidence showing that landowners have agreed for the principal plaintiffs to make this application. The principal plaintiffs have also acted under the authority of duly executed Powers of Attorney which have been signed by the elders of the Kowiru and Kaubaraka villages, which are in the SABL area.

17. In regard to the consent, it was signed on 2 September, 2008, by four people and witnessed by three people. The four people who signed the consent are Aron Malijiwi, the Chairman of Limawo Holdings Ltd, Martin Shukwei, the Vice Chairman of Lamiwo Holdings Ltd, Malcolm Nambon, a Director of Limawo Holdings Ltd and one Paul Bina, Chairman of Mamutika ILG. The three people who witnessed the signing of the consent were Pepi Kimas, Secretary for Lands, Jacob Waffinduo, Manager, Customary Land, Department of Lands and Physical Planning and Ian Jorundio, Manager, Legal Services, Department of Lands and Physical Planning.

18. The plaintiffs have argued that those who signed this consent did not obtain the views and consent of the landowners, before signing the consent. The plaintiffs have also argued that the meeting held at Turumu Primary School purportedly to gauge the views of the landowners was not a proper consultation with the landowners because most landowners were not made aware of the meeting and did not attend the meeting. There is evidence that many people that attended the meeting were not from the SABL area. This is not disputed. The evidence shows that the meeting started at 1.15pm and ended at 2.05pm. The meeting was attended by some public servants besides Michael Sino. According to the Minutes of the meeting 18 people spoke in support of the Oil Pam Project. The front page of the Minutes indicates that the meeting started at 1.15pm and finished at 2.30pm but the last paragraph of the Minutes indicates that the Chairman closed the meeting at 2.05pm. So the meeting lasted for only 50 minutes.

19. In regard to the alleged breach of s. 33 of the Land Groups Incorporation Act 1974, by the defendants where the plaintiffs claim that before the SABL was issued no list of names of landowners was lodged for the recognition of the customary land groups by the Registrar of Incorporated Land Groups, there is a list of names which appears to have been prepared for that purpose but the names have been typed and the people whose names appear on the list have not signed against their names. The list is annexed to Joseph Then’s affidavit. I have decided not to give weight to this list for two reasons, first it is not authentic as it has not been signed by the people named in the list, second it is hearsay in that it should have been produced to the Court through the person who prepared the list.

20. On 28 November, 2011, the landowners’ lawyers made a written submission to the Minister, the Secretary and the Principal Legal Officer for Departments of Lands and Physical Planning for the SABL to be revoked. The submission was in support of the petition by the landowners to the Minister for Lands to revoke the SABL. The petitioners were from the SABL area and the petition was signed by 70 people.

20. Having considered all the materials before me and the relevant laws governing the grant of SABLs, I have come to a firm view that the SABL granted over the customary land known as Potion 144C East Sepik Province was so granted in breach of the mandatory statutory requirements, viz, ss. 10 (2),(3), and (4) and 102 (2) and (3) of the Land Act. There is no evidence that the Minister made reasonable inquiries to satisfy himself that the landowners did not require the land either at all or for a period before issuing the SABL to the fifth defendant. There was also no agreement between the landowners and the Minister for the land to be acquired for SABL.

21. I do not consider the consent purportedly signed by the Directors of the landowner company for the grant of SABL represented the wishes of the majority of the landowners, if not all the landowners. There was no awareness conducted by the representatives of the State, more particularly the officers from the Department of Lands and Physical Planning and the East Sepik Provincial Government with the landowners to sufficiently inform and educate them of the intentions of the Government regarding SABLs and the effect the SABL would have on them and their land.

22. I am also not satisfied that the meeting held at Turumu Primary School on 25 July, 2008, met the requirements of meaningful consultation with the landowners. The first thing to note is that, the meeting lasted for only 50 minutes. That very clearly was insufficient time to gauge the landowners’ views on SABL. Furthermore, only 18 people spoke in the meeting. That meeting was the only one held. There is no evidence of similar meetings being held.

23. For the landowners to be sufficiently informed of the new Government policies such as introduction of SABLs which would adversely affect their traditional lifestyle; more in-depth awareness meetings should have been conducted. This could have been achieved by Government officers travelling to the SABL areas and talking to the landowners in their villages. This exercise should have been done over a period of time, say six or twelve months or even more so that the people were made aware of and understood what SABL is about, its benefits, advantages and disadvantages and so on. To me, this is the true Papua New Guinea way of consulting with people in the villages, especially where new projects are introduced in their areas and especially where SABLs would attract other projects, such as the introduction of oil palm plantations in the SABL areas. In introducing projects such as this which would have permanent and long term effect on their land, genuine and meaningful consultation with the landowners must be carried out among the landowners. This is emphasized by the Constitution in the Directive Principles under the fifth goal, which provides for promoting and protecting Papua New Guinean ways. Section 5 of the Constitution provides:

5. Papua New Guinean ways

We declare our fifth goal to be to achieve development primarily through the use of Papua New Guinean forms of social, political and economic organization.

WE ACCORDINGLY CALL FOR -

(1) a fundamental re-orientation of our attitudes and the institutions of government, commerce, education and religion towards Papua New Guinean forms of participation, consultation, and consensus, and a continuous renewal of the responsiveness of these institutions to the needs and attitudes of the People; and

(2) particular emphasis in our economic development to be placed on small-scale artisan, service and business activity; and

(3) recognition that the cultural, commercial and ethnic diversity of our people is a positive strength, and for the fostering of a respect for, and appreciation of, traditional ways of life and culture, including language, in all their richness and variety, as well as for a willingness to apply these ways dynamically and creatively for the tasks of development; and

(4) traditional villages and communities to remain as viable units of Papua New Guinea society, and for active steps to be taken to improve their cultural, social, economic and ethical quality.(my underling)

24. The meeting at Turumu Primary School was not a meeting in the Papua New Guinean way. Papua New Guinean way of meeting and consultation with landowners as I discussed above and as provided by the Constitution was required because the SABL and the related activities or projects were going to interfere with and affect their traditional lifestyle, their customary rights to land, rivers, the sea and forests. The SABL was granted to the fifth defendant for 99 years, that is how long the landowners would be denied from the use and enjoyment of their land. So the generations of landowners would be affected. This is why the defendants needed to go to the villages in SABL areas and talk to the landowners, in their families clans and tribes, in the languages they could understand. If they did understand English, Pidgin or Motu, then use interpreters to interpret things in their own languages. This to me is the Papua New Guinean way of consultation and making awareness to the landowners as envisaged by s. 5 of the Constitution. By doing things this way, people and their cultures will be recognized, acknowledged and respected.

25. The meeting at Turumu Primary School fell far short of the type of consultation I am referring to, viz; the type of consultation that is envisaged by s. 5 of the Constitution and ss. 10 (2), (3) and (4) and 102 (2) of the Land Act.

26. Even if the meeting at Turumu Primary School constituted a form of consultation, it was still not enough to gauge the views of the landowners.

27. For the reasons given, I am not satisfied that the majority of the landowners were made aware of SABL and its effect on them and their land. It follows that the purported consent signed by the Directors of the landowner company is null and void and of no legal effect.

28. There is no evidence that the land was surveyed, even if the land was surveyed, such surveys failed to comply with the statutory requirements. There is a report of some sort produced by Joseph Then, but I will give no weight to it because it should have been produced by the person who prepared it; in other words, it is hearsay.

29. I have also decided not to give any weight to the affidavit of Aron Malijiwi sworn on 5 November, 2012, because it relates to another proceeding, OS 910 of 2011, same with his other affidavit which relates to another proceeding OS 192 of 2012.

30. I also reject parts of Joseph Then’s affidavit, in which he says proper land investigation and awareness were done; these are hearsay.

31. It is also noted that the matters deposed to by Aron Malijiwi, Joseph Then and Michael Sino in their respective affidavits are disputed by Joe Wafewa, Peter Maliari and Steven Morubi.

32. Even if there was an investigation report on the land, there is no evidence that the landowners or at least the majority of them agreed to SABL.

33. There is also no Instrument of Lease in the approved form which the landowners were supposed to have signed. This Instrument should be produced by the Department of Lands and Physical Planning, through an officer who keeps record of such documents. See Musa Valley Management Company Limited & Musa Century Limited v. Pepi Kumas & Ors (2010) N3827.

34. In Doriga Mahuru & Ors v. Hon. Lucas Dekenai & Ors (2013) N5305, Cannings J, in his unreported judgment at p. 14, said:

“I maintain the approach I took in Musa Valley. To lawfully grant a Special Agricultural and Business Lease over customary land, the Minister must comply with all the requirements of Section 10, 11, and 102.”

35. I agree with his Honour. I have already found that provisions of ss. 10, 11 and 102 of the Land Act, were not complied with by the Minister when granting SABL to the fifth defendant.

36. I also find and declare that the SABL was issued in breach of s. 53 of the Constitution, in that the landowners were unlawfully deprived of their customary land.

37. For the foregoing reasons, I declare that the SABL granted to the fifth defendant on 3 September, 2008, by the Minister for Lands and Physical Planning is null and void. Any other related actions or projects undertaken or done either pursuant to or in relation to the SABL, such as logging agreements and or planting of oil palm in the SABL area are also declared illegal and null and void.

38. Any claim for damages by the plaintiffs arising from the logging agreements or operations and or planting of oil palm in the SABL area and clearing of forests should be pursued separately.

39. The defendants will pay the plaintiffs costs of and incidental to the proceeding.

___________________________________________________

Harricknen Lawyers: Lawyer for the Plaintiffs
Kuman Lawyers: Lawyer for the Defendants

O’Neill’s illegal logging: 438 days and counting…

September 5, 2014 1 comment

438 days

It is now 438 days since Prime Minister Peter O’Neill was told that the SABL leases were unlawful and should be revoked.

It was on June 24, 2013 that he was given the reports of the SABL Commission Inquiry which detail the widespread fraud and mismanagement used by foreign logging companies to gain illegal access to over 5 million hectares of land.

O’Neill has promised to cancel the leases and stop the illegal logging several times.

In September 2013 O’Neill told Parliament:

“We will no longer watch on as foreign owned companies come in and con our landowners, chop down our forests and then take the proceeds offshore”

But, despite an NEC decision in June we are still waiting for the leases to be cancelled and the logging stopped.

For 438 days O’Neill has failed to revoke the SABL leases and has been complicit in the illegal logging of our forests by foreign logging companies.

Prime Minister Peter O’Neill has aided and abetted the theft of logs worth hundreds of million of kina and the destruction of thousands of hectares of pristine forest.

Peter O'Neill: Theft of forest resources: Guilty

Forest Board urged not to renew Rimbunan Hijau logging licence

September 4, 2014 1 comment
Papua New Guinea must not renew license to deforest due to legal irregularities, social and environmental harm
logging

Global Witness via ACT NOW! blog

Global Witness is urging Papua New Guinea to block a bid by one of Malaysia’s biggest logging companies, Rimbunan Hijau, to renew a license that permits it to flatten over 40,000 hectares of tropical rainforest in order to grow oil palm. This is due to serious concerns relating to:

  • Allegations that the companies that sub-leased the land to Rimbunan Hijau used fraud and forgery to obtain it.
  • Evidence of illegal child labour and health risks at the oil palm plantation, which challenge Rimbunan Hijau’s claims that it is seriously investing in local communities.
  • Claims by communities living in and around the licensed area that the project is negatively impacting their livelihoods, health and way of life.
  • Major damage to invaluable rainforest reserves and Papa New Guinea’s freshwater ecology as a result of oil palm development.

On 4th September, Papua New Guinea’s Forest Board will decide whether Rimbunan Hijau’s clearance permit in Pomio, East New Britain Province, should be renewed. The permit straddles three Special Agriculture and Business Leases (SABLs), a leasing arrangement that has sparked longstanding controversy due to allegations of fraud and abuse in the acquisition and use of land. In June, Prime Minister Peter O’Neill pledged to cancel any such licenses that were acquired illegally.

Global Witness has seen evidence of forgery in the documents that underpin the SABL belonging to one of the companies that leased to Rimbunan Hijau, called Ralopol Investment Ltd. Communities in the neighbouring lease areas have made similar allegations of fraud and forgery in the acquisition of their land.

“This lease is for 99 years and effectively extinguishes the rights of the traditional landowners, ceding ownership to private companies” said Alex Helan, campaigner for Global Witness. “Many people allege that they did not give their consent for their land to be taken, claims that are backed up by anomalies in the lease’s documentation, including signatures which appear to have been forged”.

Global Witness is not alleging that Gilford Ltd or Rimbunan Hijau group is implicated in fraudulent activity, but is calling on Papua New Guinea’s Forestry Board to halt logging until these issues are resolved in an open and transparent manner.

SABLs characterised by widespread abuse and fraud

In 2011, in response to international pressure, Papua New Guinea’s government launched a Commission of Inquiry into SABLs, giving landowners the chance to testify. The commissioners concluded that SABLs were characterised by “widespread abuse, fraud, lack of coordination between agencies of government, failure and incompetence of government officials to ensure compliance, accountability and transparency within SABL process from application stage to registration, processing, approval and granting of the SABL”.

Two of the three commissioners submitted their reports in June 2013, recommending that nearly all of the leases they reviewed be revoked, or suspended and reviewed. The third commissioner never submitted his report. He had been tasked with reviewing the SABLs in East New Britain, including Pomio.

“The Forest Board cannot use the Commissioner’s failure to submit his report as an excuse for inaction,” said Helan. “It is clear that many landowners affected by the SABL in Pomio did not agree to surrender their land, and oppose oil palm cultivation on it.”

Conditions in and around the palm oil camp

Rimbunan Hijau maintains that its oil palm activities are benefitting the people of Pomio, yet evidence from in and around its plantations suggest otherwise.

Clearing forests for oil palm in Pomio is jeopardising a number of successful local forestry initiatives. The villages of Bairaman, Lau and Mauna, for example, were running a small-scale and sustainable sawmill operation, producing timber for local housing and infrastructure, and selling some to Australia. In 2005, the communities achieved Forest Stewardship Council certification, the highest global standard for forest management. Rimbunan Hijau has already flattened portions of Bairaman and Mauna forest within this zone.

Working conditions inside the concession are also cause for concern. Photographs taken by Global Witness inside the SABL reveal that children are working in the camp, completing manual tasks such as packing fertilizer into bags. Child labour is illegal in Papua New Guinea. The head teacher of a nearby school confirmed that an increasing number of children are not attending school because they are working in the camp.

Investigations also show that workers are being exposed to synthetic fertilisers for protracted periods without gloves, masks, shoes or protective clothing. The International Labour Organisation states that common health risks associated with exposure to these fertilisers includes burns, dermatitis, respiratory and pulmonary problems.

“Rimbunan Hijau are putting an immense amount of energy into clearing rainforests and shipping out logs,” said Helan. “This energy doesn’t seem to have translated into ensuring that labour practices are legal, let alone ‘best practice’. Photographs taken by Global Witness reflect a lax attitude towards the safety and well-being of the local work force.”

When questioned, the company stated that, “Rimbunan Hijau and Gilford take worker safety and labour laws very seriously, and are committed to providing all required safety equipment and training… The specific points you have raised – the presence of children in the Rano camp, and improper use of protective equipment – are now subject to a full investigation.”

 

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